1. The author of the
communication is Desmond Williams, a Jamaican citizen currently awaiting
execution at St. Catherine District Prison, Jamaica. He claims to be a
victim of violations by Jamaica of article 14, paragraphs 1 and 3(a), (b),
(c) and (e) of the International Covenant on Civil and Political Rights. He
is represented by Ms. K. Aston.

THE FACTS AS SUBMITTED BY THE
AUTHOR

2.1 The author was taken
into custody in June 1985 in connection with the murder, on 29 May 1985 in
the Parish of St. Andrew, of Ernest Hart. On 9 July 1985, after having been
identified by the deceased's son and wife, Rafael and Elaine Hart, at an
identification parade, he was charged with Mr. Hart's murder. On 5 October
1987, he was found guilty as charged and sentenced to death.

2.2 The Court of Appeal
dismissed Mr. Williams' appeal on 21 June 1988. His petition for special
leave to appeal to the Judicial Committee of the Privy Council was dismissed
on 23 July 1992. With this, it is submitted, all available domestic remedies
have been exhausted. The offence for which the author was convicted has been
classified a capital offence under the Offences against the Person
(Amendment) Act 1992.

2.3 The prosecution's case
rested on identification evidence. The deceased's son testified that on 29
May 1985, at about 2.30 a.m., he was awakened by his mother. Before he could
leave his bed, he heard the door of the living room being kicked open,
immediately followed by gunshots. He left his room and was confronted by two
men, one armed with a knife ("the knifeman"), the other with a gun ("the
gunman"). The "knifeman", whom he later identified as the author, ordered
him to turn on the light and to hand over all their money. He told the men
that the house was not connected to the electricity network and that money
was likely to be found under his mother's mattress. Once in his parents'
bedroom, he was ordered to lift the mattress; the "knifeman", who was
standing next to him, lit a piece of paper with a match and searched for the
money. Nothing was found, however, and the knifeman proceeded to search the
room with the aid of the light of burning pieces of newspaper. After both
men left, he went to the living room where he found his father lying in a
pool of blood across the doorway. Rafael Hart further testified that he was
with both men for about 13 minutes and that, aided by street lights shining
into the living room and by the light of the burning newspaper, he had every
opportunity to observe the author's face.

2.4 The deceased's wife
testified that, alerted by a noise outside the house, she warned her husband
and went to her son's bedroom; she then hid herself under the bed, from
where she heard a peculiar voice demanding money from her son. Although she
never saw the face of the author, she identified him by his high-pitched
voice at the identification parade.

2.5 The post-mortem
examination revealed that Mr. Hart had been shot three times with a light
weapon, fired from a distance of at least 18 inches. The gunman was never
traced by the police.

2.6 The author's defence
was based on an alibi. Desmond Williams did not give evidence; his father
testified on his behalf, stating that his son had been with him all the time
and could not have committed the crime.

2.7 As to the exhaustion
of domestic remedies, the author concedes that he has not applied to the
Supreme (Constitutional) Court of Jamaica for redress. He argues that a
constitutional motion in the Supreme Court would inevitably fail, in the
light of the precedent set by the Judicial Committee's decisions in DPP v.
Nasralla (1967) 2 ALL ER 161. and Riley et al. v. Attorney General of
Jamaica (1982) 2 ALL ER 469., in which it was held that the Jamaican
Constitution was intended to prevent the enactment of unjust laws and not
merely unjust treatment under the law. Since the author claims unfair
treatment under the law, and not that post-constitutional laws are
unconstitutional, a constitutional motion would not be an effective remedy
in his case. He further argues that, even if it were accepted that a
constitutional motion is a remedy to be exhausted, it would not be available
to him because of his lack of funds, the absence of legal aid for the
purpose and the unwillingness of Jamaican lawyers to represent applicants on
a pro bono basis for the purpose.

THE COMPLAINT

3.1 The author claims a
violation of article 14, paragraph 1, as no evidence was submitted that he
ever held or fired the gun and that, accordingly, he should have been
convicted of murder only if the jury was satisfied that he was a party to a
common design in which it was intended to cause death or serious injury.
Counsel refers to passages of the judge's summing-up to the jury, and
submits that the trial judge failed to provide adequate direction to the
jury regarding the degree of violence that must be contemplated by the
intruders in order to justify a murder conviction. In that context, it is
submitted that it took the jury less than 10 minutes to return its verdict;
according to counsel, the short duration of the jury's deliberation
indicates that it considered only the issue of whether the author was the
knifeman and not whether, if he was the knifeman, he was party to a common
design in which it was intended to cause death or serious injury.

3.2 Furthermore, counsel
states that the author was not represented by a lawyer at the identification
parade, in breach of rule 554A of the Jamaica Constabulary Force (Amendment)
Rules 1977, as the police officer in charge of the parade was unaware of
that requirement. The Court of Appeal dismissed that ground of appeal,
following its earlier judgement, in R. v. Graham and Lewis (SCCA Nos. 158
and 159/81), that rules for the conduct of identification parades are not
mandatory but procedural and that failure to observe those rules affect only
the weight of evidence and not the validity of the parade. Counsel contests
the Court of Appeal's findings and points out that the language used in rule
554A ("an attorney-at-law shall be present") is of an imperative nature; she
submits that the identification parade was invalid, and that therefore the
identification evidence should not have been admitted in the judicial
proceedings against the author. It appears, however, from the judgment of
the Court of Appeal, that prior to the identification parade the author was
asked whether he had a lawyer whom he would have wished to be present at the
parade and that the author answered in the negative. A justice of the peace
and the author's father were present at the parade.

3.3 As to violation of
article 14, paragraph 3(a), it is submitted that the author was detained for
six weeks before being charged with the offence for which he was
subsequently convicted.

3.4 The author claims that
he did not have adequate time and facilities for the preparation of his
defence, in violation of article 14, paragraph 3(b). He states that he met
with his legal representative only on the first day of the trial, after
having been in custody for more than two years. The attorney advised him not
to give evidence at the trial. The author complains that he had no
opportunity to reflect upon this advice. He further complains that the
attorney did not call his girlfriend, D.O., to testify on his behalf, in
spite of his instructions to do so. In that context, he refers to an
affidavit, dated 17 February 1993, signed by D.O., wherein she states that
she was not called to court even though she was willing to give evidence on
the author's behalf. She further states that on 29 May 1985, from 9.45 p.m.
onwards, the author was with her at home. However, it is clear that the
crime had occurred in the early morning hours of 29 May 1985. The author
claims that the attorney's failure to call D.O. to testify violated his
rights under article 14, paragraph 3(e). With regard to the preparation of
his appeal, the author claims that he met with counsel for the appeal only
once, shortly before the hearing.

3.5 The author points out
that he was arrested on 9 July 1985 and tried from 1 to 5 October 1987,
i.e., almost 27 months later. It is submitted that the delay in the hearing
of the case was prejudicial to the author, in particular since the case
against him was solely based on identification evidence. This is said to
amount to a violation of article 14, paragraph 3(c), of the Covenant.

THE STATE PARTY'S OBSERVATIONS
AND AUTHOR'S COMMENTS THEREON

4. By its submission of
6 April 1994, the State party argues that the communication is inadmissible
because the author has failed to exhaust domestic remedies. It notes that
the author may still apply for constitutional redress; in that context it
observes that the rights invoked by the author and protected by article 14,
paragraphs 1 and 3(a), (b), (c) and (e), are coterminous with sections 20(1)
and (6)(a), (b) and (d) of the Jamaican Constitution. Pursuant to section 25
of the Constitution, the author may seek redress for the alleged violations
of his rights by way of a constitutional motion to the Supreme Court.

5. In her comments,
dated 3 February 1995, author's counsel states that since legal aid is not
made available for constitutional motions, a constitutional motion does not
constitute an effective remedy in the author's case.

THE COMMITTEE'S ADMISSIBILITY
DECISION

6.1 During its
fifty-fourth session, the Committee considered the admissibility of the
communication. It noted the State party's argument that a constitutional
remedy was still open to the author and recalled that the Supreme Court of
Jamaica had allowed some applications for constitutional redress in respect
of breaches of fundamental rights after criminal appeals in those cases had
been dismissed. The Committee recalled, however, that the State party had
indicated that legal aid is not made available for constitutional motions;
in the absence of legal aid, a constitutional motion could not be deemed to
constitute an available remedy to an indigent convict and need not be
exhausted for purposes of the Optional Protocol. Accordingly, article 5,
paragraph 2(b), of the Protocol did not bar the Committee from considering
the case.

6.2 As to the author's
allegations relating to evaluation of evidence and the instructions given by
the judge to the jury, the Committee recalled its established jurisprudence,
namely that in principle, it is for the appellate courts of States parties
to the Covenant and not for the Committee to evaluate facts and evidence in
any given case. Similarly, it was not for the Committee to review specific
instructions to the jury by the trial judge, unless it could be ascertained
that those instructions were clearly arbitrary or amounted to a denial of
justice. As no such irregularities were discernible in the author's case,
the Committee deemed that part of the case inadmissible under article 3 of
the Optional Protocol.

6.3 The Committee
considered that the author and his counsel had substantiated the remaining
claims, which appeared to raise issues under article 14 of the Covenant. On
6 July 1995, therefore, the communication was declared admissible under
article 14 of the Covenant.

STATE PARTY'S OBSERVATIONS ON
THE MERITS

7.1 By its submission
dated 18 October 1995, the State party provides observations on the merits
of the author's allegations. With respect to the allegation of a breach of
article 14, paragraph 3(a), because Mr. Williams was detained for six weeks
before he was informed of the charges against him, the State party promises
an investigation. By 1 March 1997, however, the State party had not informed
the Committee of the results, if any, of its inquiry.

7.2 The State party
refutes the allegation that there was a violation of article 14, paragraphs
3(b) and (e), because the author met with his lawyer only on the first day
of the trial and because his representative did not call a potential alibi
witness. The State party notes that if counsel met with Mr. Williams only on
the opening day of the trial, she could and should have sought an
adjournment; there is no evidence that she did so. Her decision not to call
D.O. as a witness was a matter of judgement relating to the best conduct of
the defence, something for which the State party cannot be held accountable.
In this context, it is submitted that once the State party has provided the
accused with competent counsel and has not, by act or by omission,
obstructed counsel in the discharge of his duties, then the issue of how
counsel conducts the defence is not the State party's responsibility. In
this respect there is no difference between the State's responsibility for
the conduct of privately retained counsel and its responsibility for the
conduct of a legal aid representative.

7.3 According to the State
party, there can be no question of a violation of article 14, paragraph
3(c), as a result of a delay of more than two years between arrest and
trial: a preliminary inquiry was held during that time, and there is no
evidence that the delay between arrest and trial prejudiced the author's
interests.

8. Author's counsel was
provided an opportunity to comment on the State party's observations. No
comments have been received.

EXAMINATION ON THE MERITS

9.1 T he Human Rights
Committee has examined the present communication in the light of all the
information made available by the parties, as it is required to do under
article 5, paragraph 1, of the Optional Protocol.

9.2 Article 14, paragraph
3(a), gives the right to everyone charged with a criminal offence to be
informed "promptly and in detail in a language which he understands of the
nature and cause of the charge against him". The author contends that he was
detained for six weeks before he was charged with the offence for which he
was later convicted. For the purposes of article 14, paragraph 3(a),
detailed information about the charges against the accused must not be
provided immediately upon arrest, but with the beginning of the preliminary
investigation or the setting of some other hearing which gives rise to a
clear official suspicion against the accused See the Committee's General
Comment 13[21] of 12 April 1984, paragraph 8.. While the file does not
reveal on what specific date the preliminary hearing in the case took place,
it transpires from the material before the Committee that Mr. Williams has
been informed of the reasons for his arrest and the charges against him by
the time the preliminary hearing started. In the circumstances of the case,
the Committee cannot conclude that Mr Williams was not informed of the
charges against him promptly and in accordance with the requirements of
article 14, paragraph 3(a), of the Covenant.

9.3 The right of an
accused person to have adequate time and facilities for the preparation of
his defence is an important aspect of the guarantee of a fair trial and an
important aspect of the principle of equality of arms. Where a capital
sentence may be pronounced on the accused, sufficient time must be granted
to the accused and his counsel to prepare the trial defence. The
determination of what constitutes "adequate time" requires an assessment of
the individual circumstances of each case. The author also alleges that he
could not obtain the attendance of one alibi witness. The Committee notes,
however, that the material before it does not reveal that either counsel or
the author ever complained to the trial judge that the time for preparation
of the defence had been inadequate. If counsel or the author felt
inadequately prepared, it was incumbent upon them to request an adjournment.
Furthermore, there is no indication that counsel's decision not to call D.O.
as a witness was not based on the exercise of her professional judgement or
that, if a request to call D.O. to testify had been made, the judge would
have disallowed it. In those circumstances, there is no basis for finding a
violation of article 14, paragraphs 3(b) and (e).

9.4 The author has claimed
a violation of article 14, paragraph 3(c), because of "undue delays" in the
criminal proceedings and a delay exceeding two years between arrest and
trial. The State party has, it its submission on the merits, simply argued
that a preliminary inquiry was held during the period of pre-trial
detention, and that there is no evidence that the delay was prejudicial to
the author. By rejecting the author's allegation in general terms, the State
party has failed to discharge the burden of proof that the delays between
arrest and trial in the instant case was compatible with article 14,
paragraph 3(c); it would have been incumbent upon the State party to
demonstrate that the particular circumstances of the case justified
prolonged pre-trial detention. The Committee concludes that in the
circumstances of the instant case, there has been a violation of article 14,
paragraph 3(c).

10. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of article 14, paragraph
3(c),of the Covenant.

11. The Committee is of
the view that Mr. Desmond Williams is entitled, under article 2, paragraph
3(a), of the Covenant, to an appropriate remedy, including, in any event,
the commutation of the death sentence.

12. Bearing in mind that
by becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has
been a violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in case a
violation has been established, the Committee wishes to receive from the
State party, within 90 days, information about the measures taken to give
effect to the Committee's Views.